### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STATE OF FLORIDA

, Appellant,

v.

NELSON ERVIN
, Appellee

.

No. 4D 19

- 626

[ March 1 8 , 2020 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Andrew L. Siegel , Judge; L.T. Case No. 18

- 003737CF10A

.

Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Claire Victoria Madill,

Assistant Public Defe nder, West Palm Beach, for appellee.

K UNTZ , J

.

The State appeals the circuit court’s order withholding adjudication on Nelson Ervin’s no contest plea to a first degree felony . We agree the court erred in withholding adjudication . But

, at the time of s entencing, the State did not object to the court withholding adjudication

. So we

affirm.

i. Background

Ervin pleaded no contest to a rmed b urglary of a d welling , a first degree felony; two counts of d ealing in s tolen p roperty , second degree felonies; and two counts of f alse o wnership i nformation to a p awn b roker

, third degree felonies.

On the day of sentencing, Ervin’s Criminal Punishment Code

s coresheet listed the p rimary o ffense as a rmed b urglary of a d welling , a first degree f elony . T he s coresheet listed another case under “additional

offenses” and listed one count of burglary of a dwelling, three counts of2 d ealing in s tolen p roperty , and two counts of f alse o wnership information to pawn an item. The s coresheet showed the lowest permissible prison

sentence was 78 months.

At sentencing, Ervin’s counsel asked the court to withhold adjudication

, explain ing that the victim did not want to “see this young

man convicted.” Ervin’s counsel indicated the S tate was “up in the air

a bout whether or not adjudication should be withheld.” Consistent with that message, t he prosecutor told the court : “ J ust as far as the withhold, judge, can or can [ ’ ] t withhold on that so that’s the State’s position.”

The court withheld adjudication on al l five counts

.

i i

. Analysis

On appeal, the State argues the court was barred from withholding adjudication on one count because of Ervin’s plea to a first degree felony.

The State is correct.

The controlling statute specifically states that “ the court may not withhold adjudication of guilt upon the defendant for: (a) Any capital, life, or first degree felony offense .” § 775.08435(1) (a) , Fla. Stat. (2019). Based on the statute, i t is reversible error for a court to withhold adjudication on fi rst degree felony convictions. See State v. Foster , 114

So. 3d 422 , 422 (Fla. 5th DCA 2013)

.

Had the State raised the objection

, and had the court still withheld adjudication, we would be compelled to reverse. But, at most, the State

was ambivalent and failed to contemporaneously object

. See, e.g.

, Castor

v. State , 365 So. 2d 701, 703 (Fla. 1978) ; State v. Rivera , 249 So. 3d 1314, 1316 (Fla. 5th DCA 2018) (citing Jackson v. State , 983 So. 2d 562, 568 (Fla. 2008))

.

Based on the State’s failure to object, we can reverse only if the error

is fundamental. And we have previously rejected an argument that improperly withholding adjudication is fundamental error. State v.

Calvert , 15 So. 3d 946, 949 (Fla. 4th DCA 2009) ( citing State v.

Ackerman , 785 So. 2d 1229, 1231 (Fla. 4th DCA 2001))

.

i ii

. Conclusion

Th e State’s failure to contemporaneously object at sentencing, and its near acquiescence to Ervin’s request that the judge withhold adjudication , require us to affirm the court’s ruling.3 Affirmed.

W ARNER and K LINGENSMITH , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.